6.4.7 Waiver of CAPs During Victorian TAA Non-Payment Periods
This topic explains the application of the waiver provision of SSAct section 1237AAD to Centrelink recipients who are injured in transport accidents in Victoria, and who are unable to meet the definition of an 'earner' under the TAA. This topic covers:
- effect of the TAA, and
- waiver of CAPs under SSAct section 1237AAD.
Effect of the TAA
The definition of an 'earner' under the TAA effectively excludes some Centrelink recipients from receiving compensation for the first 18 months following their injury.
This is because they are unable to demonstrate to the Victorian Transport Accident Commission (TAC) that the level of their pre-injury earnings meets the definition of an 'earner' under the TAA. These recipients are only able to claim for loss of earning capacity from 18 months after their injury under common law.
If the injured person is a non-earning minor then the TAA allows payments for loss of earnings capacity to commence from the injured minor's eighteenth birthday.
Waiver of CAPs under SSAct section 1237AAD
Where the injured Centrelink recipient is not considered to be an earner under the TAA and does not receive compensation for the first 18 months following their injury or is ineligible to receive TAA payments for other reasons (e.g. is unlicensed/unregistered), the amount of CAPs paid during the TAA non-payment period should NOT be recovered under SSAct section 1178. This portion of the debt should be waived under the waiver provision of SSAct section 1237AAD.
Where the injured person is a non-earning minor then SSAct section 1237AAD should be applied to waive recovery of any CAPs paid up until the injured minor's eighteenth birthday.
Act reference: SSAct section 1169 Compensation affected payment not payable during lump sum preclusion period, section 1170 Lump sum preclusion period, section 1178 Repayment of amount where both lump sum and payments of compensation affected payment have been received, section 1237AAD Waiver in special circumstances